How Democratic is the Indian Constitution and Indian Democracy?
Paper Presented in the Third Arvind Memorial Seminar
• Anand Singh
In the discourses on the failures of Indian democracy in safeguarding the democratic rights of citizens, one often encounters the argument that there is no lacuna in the Indian constitution, rather the fault lies with those who implement it. Following quotation of Dr. Bhimrao Ambedkar – the chairman of the drafting committee of the constituent assembly – is often quoted in support of this argument:
“…howsoever good a constitution is made, it can turn out to be bad if those who follow it are bad.
Howsoever bad a constitution may be, it can turn out to be good if those who implement it prove to be good”.1
Those who follow this line of argument hold the generation which implements the constitution as solely responsible for the many failures of Indian democracy and treat the constitution as sacred and beyond any inquiry. But they forget that the generation which implements the constitution is actually the product of a socio-economic and political structure in whose formation the constitution plays a significant role.
Even the former president K.R. Narayanan once mentioned in a speech that it was not the constitution which has failed us but we who have failed the constitution. Mr. Narayanan said this in the backdrop of the formation of a commission to review the working of the constitution by the then government of National Democratic Alliance (NDA). Undoubtedly, NDA government’s decision was motivated by the communal politics of BJP. It was indeed an undemocratic step to confer the responsibility of doing the review of the working of the constitution to few constitutional experts and intellectuals and not to a body elected by people. There is no question of supporting such an undemocratic step under any circumstance. However, to treat the constitution as a sacred scripture and shield it from any inquiry is also an undemocratic approach. A democratic approach calls for an open debate not only about the decay in the various institutions of Indian democracy in the last six decades but also about how democratic the process of the making the constitution was and to what extent the Indian democracy guarantees the rights of citizens.
For a constitution to express the aspirations of people, it is extremely important that the process of the making of the constitution is carried out by a constituent assembly elected on the basis of universal adult franchise. In India, the Congress party had been demanding for one and half decade prior to independence that a constituent assembly on the basis of universal adult franchise be convened to make Indian constitution. In the Lucknow and Faizpur sessions of Congress in 1936, Jawahar Lal Nehru even advocated to make this demand as the central slogan of the Congress. But, the constituent assembly which ultimately made the constitution was not elected directly by people on the basis of universal adult franchise but indirectly as per the British Cabinet Mission’s plan by the members of the provincial assemblies who were themselves elected by merely 11.5 percent of the population of the country. The elections for these provincial assemblies were held under the Government of India Act 1935 through extremely limited electorates determined on the basis of property and education. Furthermore there was a provision of separate electorates on the grounds of religion and caste. There were 296 members in the constituent assembly out of which 96 were nominated by the ‘rajas’ and ‘nawabs’ of the feudal princely states. In the Meerut session of Congress in 1946, Nehru had promised to the people of India that a new constituent assembly would be convened after independence on the basis of universal adult franchise. But after getting the independence this promised was forgotten.
The constituent assembly was totally boycotted by Muslim League due to which it essentially became a single party body. Whatever differences emerged in it were because of the contradiction between the left-wing and the right-wing of the Congress. The drafting committee which was bestowed with the task of framing the constitution started its functioning from October 27, 1946. Two bureaucrats of Indian Civil Services – Sir B. N. Rau and S.N.Mukherji had already prepared a draft of the Constitution. This fact was acknowledged even by Ambedkar in his speech as the chairman of the Drafting Committee on November 25, 1947. The task of the drafting committee was to examine the already prepared draft and to suggest the amendments if needed. This fact was acknowledged by Satyanarayan Sinha, a member of the Constituent Assembly. The meetings of the committee commenced on October 1947 and lasted till February 13, 1948 in which not all members used to be present on regular basis but the quorum used to be fulfilled. Some amendments were recommended in these meetings which were incorporated in the original draft. On November 26, 1949 the final draft of the constitution was passed by the constituent assembly and the constitution came into being on January 26, 1950.
After discussing about the process of making of the constitution, let us turn our attention to the substantive content of the constitution. Out of 395 articles of the original constitution, 250 were borrowed from the colonial ‘Government of India Act 1935’ either in Toto or with some minor modifications. It is to be noted that it was the same act which Nehru had termed as the ‘charter of slavery’. On the main skeleton made out of the articles of this act, some provisions borrowed from the constitutions and the political traditions of countries ranging from Britain, USA, Ireland to Canada and Australia were superimposed and after giving a populist finishing touch over it, a gigantic constitution consisting of 90000 words came into being. Often people take pride in the fact that the Indian constitution is the biggest constitution in the world. But there is no direct correlation between the size of the constitution and its ability to safeguard the rights of the citizens. The truth is that the scope of the provisions in the Indian constitution is so wide that the state does not even need to violate the constitution in order to encroach upon the rights of the citizens. The blatantly undemocratic steps such as the emergency of 1975, the situation of virtual military rule in Jammu and Kashmir and North Eastern states, the war against the people of the tribal dominated citizens of central India in the name of fight against Maoists, numerous draconian laws etc. are all well within the ambit of the constitution. In this respect, the Indian constitution has a semblance of the jurisprudence of the notorious German Reich.
An attempt to create a fusion of the preamble of the American constitution and the ideals of enlightenment era is discernible in the wordings of the preamble of the constitution. The provisions related to fundamental rights, judicial review and the independence of judiciary are inspired from the American Constitution. The concept of the Directive Principles of State Policy is borrowed from the Irish Constitution. The centralised federal structure is taken from the constitution of Canada. The concept of concurrent list is inspired from the Australian Constitution. The parliamentary form and the separation between legislature, executive and judiciary have been borrowed from British tradition.
Indian Constitution begins with the following words:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
The American constitution also begins with the similar words – “We the people of United States….” Actually both the American constitution and Indian constitution begin with a fraud. There was no representation of the black slaves in the Philadelphia convention which made the American constitution. Likewise, since Indian constituent assembly was not elected on the basis of universal adult franchise, it did not represent the people of India in the true sense of the term.
At the time when the constitution came into being, India was an extremely backward agrarian country shattered by two centuries of colonial slavery. In such a society, people’s capabilities of collective initiative and collective decision making could not have been developed without implementing land reforms in revolutionary manner and without this it was impossible to escape from the pressure and interference of imperialism. Even though the bourgeois state became sovereign (although not totally), looking from the perspective of the people’s sovereignty, the ‘sovereign’ term in the preamble appears to be hollow. In the current era of globalisation this word is increasingly losing its meaning.
“Socialism” and “secularism”, these terms were not present in the original constitution; rather they were inserted through the 42nd amendment of the Constitution. The purpose of force fitting these terms into the preamble during the emergency era was to conceal the fascist and blatantly anti-people acts of the Indira Gandhi government at that time with the populist jargons and it had least bearing with the lofty ideals of socialism and secularism. In the era of privatisation, liberalisation and globalisation, when the state is washing off its hands from its responsibility of fulfilling even the basic needs of the citizens, the presence of “socialism” in the constitution is a sort of tragic farce. As regards “secularism”, in Indian democracy secularism has evolved not in the classical bourgeois democratic sense of complete separation of religious institutions and rituals from the political arena and confining the religious beliefs to the realm of personal life which was a product of European renaissance and enlightenment era, but as “Sarva Dharm Sambhav”(equal respect to all religions). In this backdrop, it is not at all surprising that along with the passage of time the interference of religion into politics has increased and the communal and religious fundamentalist forces are flourishing throughout the country.
The enthusiastic supporters of Indian democracy who glorify it by terming it as the biggest democratic republic cite the “free and fair” elections held on the basis of universal adult franchise as an evidence of their claim. The term “political justice” in the preamble bears the same meaning. In this context, it is natural to ask whether the criterion for judging the freeness and fairness of elections is merely to successfully conduct the elections in presence of heavy police machinery and para-military forces. Doesn’t the clout of money power and muscle power in the electoral process raise a question mark over its independence, impartiality and the democratic nature? According to a report, in the Loksabha elections held in 2009, on an average the big parties spent Rs 30 crore per candidate and smaller parties spent Rs 9 crore per candidate.2 Although none of the political parties could get the absolute majority in the 15th Loksabha, there is one group which has got the absolute majority and it is that of crorepatis (people having declared assets worth more than Rs 10 million). In the 545 member Loksabha, number of crorepatis exceeds 300. Besides, 150 members are having criminal antecedents.3 Condition of the state legislative assemblies is even worse. Under such a situation, it is clear that the representation of people in the government is increasingly on the wane. Hence the common people of India are deprived of their right to be elected and and even their right to elect is mainly and essentially formal. Besides, they have no right to recall their representatives due to which the people find themselves helpless before an authoritarian and unaccountable government.
One of the ideals proclaimed in the preamble is “economic justice”. But the constitution does not guarantee to the citizens the important rights such as right to work, right to minimum wages, right to humane condition of work, right to get equal wage for equal work, right to get nutritional food, right to get social security etc. Although there is a passing reference to some of these rights in the fourth part of the constitution in form of directive principles of state policies but these principles are not justiciable. At the time of framing of the constitution, it was argued that the state, at that point of time, did not have the requisite resources to guarantee these rights to the citizens. Six decades after coming into being of the constitution, it is pertinent to ask: why is it that at a time when the Indian economy is growing by leaps and bound, the state is going back on its promises instead of fulfilling them? In the era the neo-liberal policies, the words like “economic justice” are conveniently laid to rest in the thick volume of the constitution.
In order to achieve the ideal of social justice and equality, some fundamental rights have been conferred to the citizens in the part three of the constitution towards ending the discrimination based upon caste, race, religion, sex etc. But six decades after the constitution was adopted, we are witnessing the increasing structural oppression based on gender and caste. The frequent incidents of dalit atrocity, domestic violence, female foeticide, rape, honour killing appear to make mockery of the fundamental rights contained in the constitution.
As has been discussed above, the constitution does not even guarantee to the citizens the basic rights necessary for living a human life. Whatever fundamental rights are mentioned in the part three of the constitution are extremely narrow in scope. Even for the extremely limited fundamental rights conferred through the constitution, the provisions for numerous conditions and restrictions are present in the constitution itself which can be easily used by the state to encroach upon the rights of the citizens without violating the constitution.
Take for instance Article 19 of the Constitution which confers upon some fundamental rights to the citizens, viz. freedom of speech and expression (article 19(1)(a)), freedom to assemble and hold meeting anywhere in the country(article 19(1)(b)), freedom of forming associations (article 19(1)(c)), freedom of residing and settling in any part of India(article 19(1)(d)) and freedom of choosing a vocation(article 19(1)(e)). Article 19 also contains the provision that all these freedoms are subject to reasonable restrictions. The bases of these reasonable restrictions can be national security, public order, morality and decency etc. It is this provision of reasonable restrictions which has been blatantly misused by the state in the last six decades to curb the citizens’ fundamental rights of freedom of press, freedom of assembly and holding meeting and of travelling and forming a union. Apart from the reasonable restrictions, the provisions of imposing restrictions on the fundamental rights are present in the part eighteen of the constitution in the form of emergency provisions. In the event of the proclamation of national emergency, all fundamental rights, except for the rights of life and personal liberty as contained in the article 20 and article 21, can be suspended through a presidential order. Since even the fundamental right of constitutional remedy as per article 32 can be suspended, the rights provided under articles 20 and article 21 also become essentially ineffective. So far, national emergency has been declared four times – thrice for external reasons and once for internal reason. The emergency which was effective from June 1975 to March 1977 is notorious for widespread violation of the fundamental rights of the citizens when a virtual dictatorship prevailed through constitutional means.
Another provision which makes a mockery of the citizens’ fundamental rights is present in article 22 of the constitution which authorises the state to make laws related to preventive detention. This provision of the constitution has been grossly exploited by the parliament and the state legislatures in the last six decades to make numerous draconian laws which have been used by the state not only to violate the civil liberties but also to crush the people’s movements. The ink of the original Constitution had not even dried up when the Preventive Detention Act 1950 was passed which remained in force till 1969. Subsequently, Maintenance of Internal Security Act (MISA) was brought in 1971 which became the symbol of the naked dictatorship of the state during emergency. In 1980 National Security Act was brought which remains in force till date. In 1985 Terrorist and Disruptive Activities Act (TADA) was brought which was grossly misused in the name of fighting terrorism. In 2002, the then NDA government, in an unprecedented manner, hurriedly passed a new anti-terror law, first as an ordinance and then by passing Prevention of Terrorism Act (POTA) by convening a joint session of the parliament. As expected, it too was misused. In 2004, in order to showcase its progressive image, the UPA government repealed POTA, but cleverly inserted its draconian provisions into the Unlawful Activities (Prevention) Act. Besides, there are several such draconian laws in different states, e.g. MCOCA in Maharashtra and Chhattisgarh Special Security Act in Chhattisgarh.
In a recent PUCL’s seminar in Delhi on the topic of state repression, the civil liberties and democratic rights activists from different parts of the country shared their experiences as to how the state machinery is using the draconian laws as a weapon to crush the people’s movement. In different parts of the country, the draconian laws are being used against the peasant and labour leaders and media activists and intellectuals sympathetic to the people’s movements. Special reference was made in this seminar to the Sedition Act (section 124 A of Indian Penal Code) under which several intellectuals and activists are being tried including Binyak Sen. It is to be noted that this section has been in existence since the colonial times and even Gandhi and Tilak were tried under this section.
Besides, the situation of a virtual military rule which prevails in the north-eastern states and Jammu & Kashmir has been approved by another draconian act called Armed Forces Special Powers Act. In the north eastern states, this draconian law is in force since 1958 and in Jammu & Kashmir since 1990. It has been grossly misused to abridge the fundamental rights of the people of these peripheral nationalities. It is to be noted that the virtual military rule in these regions is well within the ambit of the Constitution. In case of Jammu & Kashmir, betraying the promise of holding a referendum, the Indian state cleverly merged it within India using the constitutional weapon of article 370 against the will of its people.
The dark shadow of the colonial past hovers not only around the constitution and statutes but across the entire edifice of governance and administration. Last year, flaunting a radical gesture, ex-environment minister Jairam Ramesh threw off the traditional gown in the convocation program of an institute by terming it as a barbaric colonial relic. Perhaps Mr. Minister forgot that the barbaric colonial relic is present not only in the form of traditional gown but it is embedded in the structure of the governance and administration of the central and state governments at all levels from the ministries and secretariat to the district and Tehsil. All the major laws governing the Indian administration were enacted during the colonial era in order to govern a colonial regime. They were adopted either ditto or with some minor adjustments after independence. For instance, Indian Penal Code was made in 1860, Indian Evidence Act was enacted in 1872, Civil Procedure Code in 1908 and the Transfer of Properties Act in 1882. Besides, overly centralised, non-transparent and hierarchical administrative structure, its modus-operandi, the designations of bureaucrats and their distance from people all are reminiscent of the colonial past. Two top All India Services – IAS and IPS (which find mention even in the Constitution) – are also a ‘gift’ of colonialism. The ICS, the predecessor of IAS, was considered as the ‘steel frame’ of the British Raj as the entire colonial rule rested on it. Even after independence, the IAS has been more effective in maintaining the continuity of the tyrant rule of the rulers. So far as the responsibilities related to public welfare and development are concerned, it has proved to be anti-people and utterly incompetent. The shadow of colonial past can be clearly felt in the attitude of the bureaucrats and their behaviour with the people. The Y K Alag Committee, formed in 2001 to examine the condition of civil services, had correctly pointed out in its report that the members of civil services exhibit ruler mindset.
India is a signatory to The Universal Declaration of Human Rights and the International Covenant of Human Rights. But ironically, the incidents of the violation of the human rights by the different organs of central and state governments are very common in India. Indian police force is notorious for illegal custody, custodial deaths and rapes, fake encounters etc. Justice A.N. Mulla of the Allahabad High Court had made a pertinent remark in a verdict that “there is not a single lawless group in the whole country whose record of crime is anywhere near the record of that organised unit which is known as the Indian Police Force”. According to a report, 1,184 people were killed in the police custody in India between 2001 and 2009.4 According to a report of a RTI activist, every second police encounter is fake one.5 The National Human Rights Commission formed to stop the violation of human rights has proved to be utterly ineffective.
While the reputation of the legislature and executive had been tarnished in the people’s psyche long ago, that of the judiciary was relatively better till a few decades ago. The judiciary was considered to be the last ray of hope in so far as the democratic rights of the citizens are concerned. But even this last ray of hope is losing sheen with the passage of time. The judicial process is getting costlier, longer and tiresome with each passing day. The constitutional remedy had already gone out of reach of the common people, the process of the legal remedies which are within their reach are increasingly getting so complex and tiresome that to go through this process is itself a punishment. More than 30 million cases are pending in the different courts in the country. According to an estimate, if the Indian courts will continue to deliver justice with the current rate, it would take more than 320 years to clear the backlog of cases.6 Around 70 percent of the prisoners in Indian prisons are under-trials which in itself is a living testimony of the violation of citizens’ right by the state. Indian judiciary has proved to be utterly incapable to secure the rights of labourers by implementing labour laws. There is so much delay in the process of getting justice through the labour courts and industrial tribunals that most of poor and workers do not even think of approaching them. In the current era of globalisation, the higher judiciary has taken largely anti-labour stand.
As per a nationwide survey conducted by the Centre for Media Studies, 77 percent of the participants held the opinion that the Indian judicial system was corrupt. The scope of corruption is no more confined to the lower judiciary alone. Former Chief Justice of India S.P. Bharucha said in the year 2002 that among the judges of higher judiciary, 20 percent are corrupt. Much water has flown in the Ganges since then. Now the virus of corruption has infected even the office of chief justice of the Supreme Court. Under such a circumstance a big question mark is raised on the capacity of the judiciary to safeguard the democratic rights of the citizens.
It’s not that no thought has been given to make the Indian system of governance and administration people oriented by freeing it from the burden of colonial past. So far, numerous commissions have been formed including the Commission to Review the Functioning of the Constitution, Administrative Reforms Commission, Police Commission, Law Commission etc. It is another thing that numerous recommendations of such commissions and committees are eating the dust of the files which themselves are are in use since the colonial era. The burden of the colonial past has become so heavy that it is no longer possible to get rid of it through commissions and committees. Nor is there any willingness among the ruling elite in this direction. The people are left with no other choice but to launch movements for safeguarding their democratic rights. The democratic rights movement needs to internalise this reality and set its agenda accordingly.
The democratic rights activists will have to educate the broad masses about the meaning and significance of the democratic rights through mass movements. They will have to be united, mobilised and organised around the issues of the democratic rights. Nationwide mass movements need to be carried out against all the colonial and draconian laws and the anti-people acts of the governments and administrations. It is to be recalled that even during the freedom struggle, the nationwide mass movements began with the large scale mobilisation of people against Rowllet Act which was the ancestor of all the draconian laws in the true sense of the term. Alternatives of the existing centralised, non-transparent and anti-people institutions will also have to be explored during the mass movements only. Serious attention needs to be paid to the multi-tier electoral system on the basis of small constituencies and also to the right to recall the elected members. Sincere thought needs to be spared to evolve numerous forms of people’s committees and people’s councils In order to tighten the hold on the bureaucracy by increasing the direct participation and involvement of the masses. Clearly, in order to prepare the mass base for such a large scale transformation in the constitutional, legal and administrative system, the democratic rights movement will have to put the demand of calling a new constituent assembly on the basis of universal adult franchise into its agenda.
1 Ambedkar’s speech before the constituent assembly on 25 November 1947
2 Amit Bhaduri’s article in EPW, November 2010
3 National Election Watch (http://ionalelectionwatch.org)
4 Report of Asian Centre of Human Rights (http://hrweb.org/countries/india.htm)
5 Two Circles (http://www.achrweb.org/countries/india.htm)
(Translated from Hindi: Anand Singh)